| Richard Ackland
July 7, 2006
A WEEK ago the US Supreme Court determinedly upset much of the legal armoury with which George Bush and, by implication, John Howard have fought the war on terrorism. The Hamdan decision went much further than just striking down the bogus "trial" procedure that the Bush people had concocted to get alleged terrorists held at Guantanamo Bay convicted. The military commission process was illegal because it was not authorised by Congress and it offended the Geneva Conventions, which are judicially enforceable instruments.
But if Geneva Conventions and congressional approval are required for Guantanamo trials, what about the whole slew of "legal" devices that the Bush White House has manufactured for the war on terrorism? This includes warrantless eavesdropping, indefinite detention, interrogation techniques, torture, rendition and CIA black sites.
All these bits of apparatus in the war were conjured by Bush and offend the same principles that the court identified in the Hamdan case. The court's findings run much deeper than Bush and Howard might care to admit. It is the most important decision affecting presidential power since US v Nixon (hand over the tapes).
Back here the news was greeted by Howard with a bit of shuffling of the feet and something about receiving the wrong legal advice. Further, he wasn't much interested in this "bloke" Hicks coming back to Australia without facing "some trial in America" because we can't try him here. "Hicks should be brought to trial as soon as possible," he said.
How many years has that refrain been tapped out by this bloodless little coot? And yet the trial is as far away as ever because Congress is unlikely to grope its way to an agreed process any time quickly.
The true position of the US and Australian governments is that they are not so much interested in trials for the detainees as convictions. Even if the Guantanamo prisoners are innocent, the political imperative is that they should not be released because to do so would be an admission that the war on terrorism has been misconceived, or that it is not as terrifying as it's supposed to be.
The Defence Secretary, Donald Rumsfeld, after all, characterised the people held at Guantanamo as "the worst of the worst". You'd think it wouldn't be all that difficult giving fair trials and securing convictions for the worst of the worst. Yet if Hicks or Hamdan or any of the 10 at Guantanamo who have been charged with anything ever go to a trial before a properly constituted military or civil court, they are most unlikely to be convicted. The reasons for that are various: no evidence, tainted evidence (that is, evidence from torture) or no crime.
Howard keeps saying this "bloke" Hicks trained with al-Qaeda and because to do so was not an offence in Australia at the time, he cannot be tried here. In the aftermath of the Hamdan decision it may not be a crime in the US, either. The Supreme Court looked at that issue and said that "war crimes" are limited to offences "committed during, not before or after the war". Training with al-Qaeda was not something Hicks did during the war in Afghanistan. In any event, he is not charged with "training with al-Qaeda", so what is Howard going on about?
The weird rationale behind the US charges against Hicks is that it is a war crime to shoot at Americans in a war, even if you are a soldier on the other side, and particularly so if you are what many US servicemen refer to as a "sand nigger" wearing strange clothes. Of course, this is nonsense. The Geneva Conventions make it nonsense, as the US Supreme Court has found the relevant bit of the Conventions apply as a treaty obligation to the conflict against al-Qaeda.
Last week's Supreme Court decision means that Hicks's habeas case to determine the propriety of his custody can proceed. This is most important and should take place before any trial, even though Howard seems to want the trial first and the committal later. It also means that the Geneva Conventions appeal brought by the US Government against a ruling in Hicks's favour in the US District Court is unlikely to go far.
In fact, Hicks has won at each stage of the legal process. He won in the Rasul case (federal law applies to Guantanamo), he won in the District Court (Geneva Conventions apply in Guantanamo) and he was on the winning side in Hamdan. Quite a lot of winning for someone who's the worst of the worst.
What it does show is the sheer folly of sacrificing our decency in the name of fighting terrorism.
Howard keeps saying this "bloke" Hicks trained with al-Qaeda and because to do so was not an offence in Australia at the time, he cannot be tried here. In the aftermath of the Hamdan decision it may not be a crime in the US, either. The Supreme Court looked at that issue and said that "war crimes" are limited to offences "committed during, not before or after the war". Training with al-Qaeda was not something Hicks did during the war in Afghanistan. In any event, he is not charged with "training with al-Qaeda", so what is Howard going on about?
The weird rationale behind the US charges against Hicks is that it is a war crime to shoot at Americans in a war, even if you are a soldier on the other side, and particularly so if you are what many US servicemen refer to as a "sand nigger" wearing strange clothes. Of course, this is nonsense. The Geneva Conventions make it nonsense, as the US Supreme Court has found the relevant bit of the Conventions apply as a treaty obligation to the conflict against al-Qaeda.
Last week's Supreme Court decision means that Hicks's habeas case to determine the propriety of his custody can proceed. This is most important and should take place before any trial, even though Howard seems to want the trial first and the committal later. It also means that the Geneva Conventions appeal brought by the US Government against a ruling in Hicks's favour in the US District Court is unlikely to go far.
In fact, Hicks has won at each stage of the legal process. He won in the Rasul case (federal law applies to Guantanamo), he won in the District Court (Geneva Conventions apply in Guantanamo) and he was on the winning side in Hamdan. Quite a lot of winning for someone who's the worst of the worst.
What it does show is the sheer folly of sacrificing our decency in the name of fighting terrorism.
justinian@lawpress.com.au
http://www.smh.com.au/news/richard-ackland/in-hickss-case-its-not-the-law-that-is-the-ass/2006/07/06/1152175717909.html |
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